Wall Street Journal
By Maria Abi-Habib and Carol E. Lee
February 18, 2017
A current draft of President Donald Trump’s replacement executive order on immigration and refugees shows that the administration would try to keep temporary travel restrictions on citizens of seven Muslim-majority countries, according to an internal State Department memo discussing the document.
The new order would, however, reverse the previous directive’s inclusion of green-card holders from those countries, according to the State Department memo which was reviewed by The Wall Street Journal. Green-card holders were initially included in the original ban but then later excluded. The administration has said the travel ban was necessary to thwart terrorist attacks.
The replacement order is expected to be issued as soon as Tuesday, according to a U.S. government official.
Asked about the memo, a senior administration official said the new order isn't yet complete. “It’s still being worked on,” the official said.
The State Department refused to comment on the draft.
The Justice Department told an appeals court Thursday that the president would rescind the current executive order and replace it. The first order prompted more than 20 lawsuits, with challengers arguing that the order violated individual rights and wasn’t justified by a new national-security threat. A court ruling this month from the Ninth Circuit Court of Appeals in San Francisco stayed several key provisions of the original order.
A State Department official said the new order would likely jettison the indefinite ban on Syrian refugees entering the U.S. But two White House officials said that ban wouldn't be dropped.
Homeland Security Secretary John Kelly said Saturday that the administration is planning a new version of the executive order that would be phased in to allow people already in transit to enter the U.S.
“The president is contemplating issuing a tighter, more streamlined version of the first E.O.,” Mr. Kelly said during a visit to Munich. “I will have, this time, the opportunity…to work the rollout plan in particular to make sure that there’s no one in a sense caught in the system moving from overseas to our airports, which happened in the first release.”
Mr. Kelly said “it is a good assumption” that green-card holders would be allowed into the U.S. He said there would be a “short phase-in period.”
The State Department memo makes clear the White House is seeking a careful and deliberate rollout of the new executive order, with government lawyers requesting its implementation seven to 14 days after Mr. Trump signs the document. The lag period is designed for government lawyers to deal with any legal challenges to the new order before it is implemented, the memo explains.
The immediate implementation of Mr. Trump’s Jan. 27 executive order on immigration and refugees created chaos across global airports, sparking protests across the U.S. Refugees en route to the U.S. when Mr. Trump signed the order were turned back once they landed at American airports.
According to the memo, the draft retains the provision from the previous order that temporarily bans travel to the U.S. by citizens from Iraq, Iran, Syria, Libya, Yemen, Somalia and Sudan.
The original order suspended the entire U.S. refugee program for four months and indefinitely banned Syrian refugees. The administration argued at the time that the original provisions were needed to keep possible terrorists from entering the U.S. posing as refugees.
A State Department official said the ban on Syrian refugees could be scrapped in the new order, but it would keep in place a lowered admission ceiling of 50,000 refugees for 2017 enshrined in the previous order.
Some 35,000 refugees have been admitted for the government’s 2017 fiscal year, which ends in October, leaving only 15,000 admission slots left globally for the next 7½ months.
The memo says a slowdown is needed for refugee admissions for the rest of 2017 to accommodate the lower ceiling, admitting 400 refugees a week from 1,900 a week under the previous administration. Mr. Trump more than halved the 110,000 refugee admission ceiling set by the administration of President Barack Obama for fiscal year 2017.
The current draft gives the secretary of state broad authority to waive individual cases and allow, in certain instances, citizens from the seven banned countries to enter the U.S., but the secretary must agree with the Department of Homeland Security before specific cases are waived.
The memo said the Department of Homeland Security is unwilling to put into writing categories of visa seekers that could be exempt from the new order, such as students seeking entry via U.S. government-funded exchange programs.
The approach described in the memo would likely bolster the White House’s position, both legally and politically.
Legally, one of the primary critiques of the order is that it amounts to religious discrimination. The new version appears to address that by eliminating the preferences for religious minorities that was included in the original order.
Further, in its ruling, the Ninth Circuit Court of Appeals was critical of the administration’s mixed messages as to whether legal permanent residents, also called green-card holders, were affected. The new version appears to address that by making clear that they aren’t included.
The appellate court also criticized the order for lacking due process for those affected. Giving notice before it take effect could address that, at least in part.
The new approach described in the memo also appears to try to address the administration’s political problems around the order. Many Republicans who otherwise support the idea were highly critical of the chaotic way the order was rolled out. Democrats and others were critical of the process and the substance.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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